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The question of malice

Extract from the judgment of Mr Justice Eady in the Shieldfield libel trial, Royal Courts of Justice, London, 30 July 2002
 

1284.      It is relatively simple to state the classic definitions of malice from the leading cases, but not always so easy to apply the principles to particular facts. Here, for example, the Report contains statements which are obviously false, many where it is impossible to know the evidence upon which specific findings of fact were based, and fundamental flaws in the reasoning process. None of these factors, however, can of itself demonstrate malice. Yet I cannot proceed on the basis that any of the Review Team members was not intelligent enough to spot them – still less all four of them. I must treat them all, it seems to me, as being very intelligent. They have all held down responsible jobs. Indeed, the intelligence of Ms Jones, Mrs Saradjian and Mr Wardell was obvious when they were in the witness box. That of Professor Barker may have been somewhat obscured by the process of cross-examination. Yet, despite that, somehow they all managed to promulgate this influential document with all its imperfections.

 

1285.        There is room for debate as to how this came about. It is hardly surprising that in respect of some of the more glaring errors Miss Page accused them of deliberate misrepresentation or "lies". Their responses were interesting; they were generally low key and dead pan. There was resort to ready formulae which gave every impression of being rehearsed. Each of the Defendants would produce, from time to time, a mantra to the effect that he or she had approached the task fairly and honestly, and had believed what they said at the time it was written. Alternatively, they would resort to such nebulous concepts as the overall picture, the evidence as a whole, the "core consistencies" and the application of professional judgment or experience. Sometimes, too, reference was made to everything having been done in accordance with legal advice (not revealed). These responses were pulled out as trump cards as if to prevent any further probing on the subject in hand.

 

1286.        Mr Bishop submitted that, with the best will in the world, mistakes ("some major, some minor") will always be made, as this case has amply demonstrated.

 

1287.        Although Mr Bishop in his submissions suggested that there could be silly errors or mistakes, in seeking to distance his Clients from findings of bad faith, it was interesting that this was not the way the Review Team witnesses put it themselves. They did not appear to accept that there were significant mistakes. They for the most part seemed to want to defend the Report even with hindsight. Their case was put, in closing, on a conditional basis:

a.      "If the court, having heard and seen all the evidence, including that from the Claimants themselves which they were not willing to provide to the Review Team, comes to the conclusion that the Review Team got some or all of their conclusions as to what occurred at the Nursery wrong and/or that the Review Team made other mistakes in the way that they carried out this inquiry and recorded their conclusions, the Review Team, will of course deeply regret that they have got it wrong, but the fact that they did not come to the same conclusion as the court and that they approached their task and the issues in a different manner does not and cannot make them malicious".

1288.        The problem is that I have to make a decision, on the basis of their evidence, whether or not any of them was motivated by malice in publishing the Report. It cannot be an answer merely to say that, in general terms, they honestly believed that each of the Claimants was guilty of multiple abuse. Miss Page, of course, invites me to hold that they did not have such an honest belief, or that they did not care whether the allegations were true or false. They were merely bent on assuaging the pressure from parents and others. If that were established, I could find malice. It does not necessarily follow, however, that if it is not established malice would fall by the wayside.

 

1289.        I need to address certain other possible scenarios. Suppose that the Defendants genuinely believed the overall conclusions but (contrary to their own case) were merely careless or sloppy in compiling the Report. Suppose, on the other hand, that they had twisted or manipulated the evidence so as to give a spurious authority to the Report and its published conclusions. I have little doubt that the former conclusion would be inconsistent with malice, but that the latter would enable me to find malice established. On such an hypothesis, the Defendants might believe that the Claimants were child abusers but that is not the same as believing in the truth of the words complained of.

 

1290.        Another possibility is that each of these people was so blinded by prejudice that any skewing of the evidence, or any misrepresentation of its effect, was unconscious. Such a scenario, perhaps more theoretical than real, would not necessarily be consistent with malice.

  . . . . . . . . . . . . . . . . .  .. . . . . .

 

1297.        There is no doubt that the Review Team adopted a quite different approach to the assessment of the evidence before them from that familiar to lawyers. It seems to have been to a large extent "impressionistic". They seem to have thought it at least equally valid. They said that their approach was akin to that adopted in a child protection conference when deciding whether to remove a child from a particular environment. Such decisions are not normally announced to the public, however, as findings of guilt. What I need to focus upon, making all due allowance for their chosen approach, is whether they acted in good faith. After all, they claimed publicly to be weighing a great deal of evidence dispassionately and to be applying a standard of proof akin to that in civil litigation. They said (at page 276), in the context of "public figures", that they should not have to prove their innocence and that "they have the right to be judged by exactly the same legal and evidential standards as any other citizens". It is therefore possible to make an assessment of whether they did what they claimed in relation to these two citizens.

 

1298.        The Team were ready and willing to ask almost all those they interviewed what they thought had happened at Shieldfield Nursery. In other words, they were inviting speculation, rumour, guesswork and gossip and treating it as part of the corpus of evidence upon which they made their decisions. Why this was thought to have any value, I cannot see. It was surely part of the Team’s responsibility to bring objectivity and independence to a highly fraught situation in which emotions had been running high. Parents were naturally deeply concerned about what, if anything, had happened to their children. Council employees and others were nervous about being accused of impropriety or inefficiency and losing their jobs. In that atmosphere, what was required was a cool and dispassionate appraisal of the facts. A careful distinction needed to be drawn between the evidence and suspicion. Unhappily, they sold the pass early on by deciding to conflate the two almost as a matter of policy. As Mr Wardell observed on 25 February:

a.      "We found material and we found people’s opinions, that were very strongly expressed in some cases, that made us come to the conclusion we did".

1299.        This approach is seriously flawed, but once it was adopted, at the very least, the readers were entitled to see clearly spelt out the difference between fact and opinion, so as to enable them to make some attempt at forming a view as to the validity of the opinions.

 

1300.        Unfortunately, the distinction between gossip and fact was not made clear on the face of the Report, so as to enable even careful readers to spot the difference. For example, they sought to stereotype Dawn Reed as coming from a "troubled" background and, indeed, this theme was picked up by one of their experts (Dr Friedrich).

 

1301.        This was said by Mrs Saradjian to have come from a former nursery worker called Dymphna Donnelly (known as "Donna") who left in 1990 and who, according to Dawn Reed, hardly knew her. Mrs Saradjian said in evidence that this woman had told her that Dawn Reed had described her own background as "troubled". This sounded implausible and indeed quite inconsistent with Dawn Reed’s own attitude towards her family background (and her mother’s sworn evidence). Upon closer examination, the story was said to have come via Dymphna Donnelly from an unnamed "mutual friend". That simply will not do. That is third hand gossip. Mr Bishop pointed out that Professor Barker had also referred to Carol Welsh telling them that Dawn Reed "appeared to have a troubled background". Yet this did not greatly assist, since no solid basis for the claim was produced. A reader would have assumed that the Team had such a basis for casting her in that light. When Dymphna Donnelly finally came to give evidence on 24 April, none of this was addressed. She had nothing relevant to say. Her main point seemed to be that Mr Lillie had gatecrashed a party when he was about 25 and presented himself for a lift in someone’s car without being invited. At this point I felt that the Defendants’ case was drawing close to the bottom of the barrel.

 

1302.        Another aspect of stereotyping in the Report was to include the proposition that Dawn Reed had lived with her grandmother when growing up. Of course, literally that was true but the crucial fact omitted was that she also lived with her mother in a somewhat extended three generational family environment. The Team knew this. It becomes obvious that the Team included these vague allegations about Dawn Reed as established fact because they thought they would be treated by the readers as providing significant support for the image they had decided to portray.

 

1303.        The attitude taken by Mrs Saradjian was that Dawn Reed could have come along and spoken to the Team and provided them with the relevant information; since she had chosen not to, the Team were entitled to reach such conclusions on what they had (i.e. in this instance gossip). It was thus, in a sense, her own fault that she was misrepresented. So much for independence and objectivity. I thought Mrs Saradjian’s off the cuff response very revealing. Still, however, these are aspects of the Report that are consistent with prejudice and undisciplined mental processes. Such matters, standing alone, are not to be equated with the concept of express malice.

 

1304.        Although the Team appeared to set such store by people’s "opinions", there was an obvious slant in the process of selecting which to rely upon and which to reject. They chose to omit opinion if it was favourable to Miss Reed. The classic case was that of Mr Kevin Hattam, her trade union representative, who had said that either she was innocent or "a brilliant liar". Professor Barker regarded him as biased. It was therefore inappropriate to give any weight to his assessment, even though the Review Team had been especially keen to invite his impression (since he had seen more of Miss Reed than most other witnesses). Moreover, Mr Hattam’s reservations about the disciplinary proceedings (being the "strangest" he had ever encountered) could be put to one side because they had it from Mr Graham Armstrong himself that the disciplinary procedures had been fair.

 

1305.        Another assessment the Team chose to ignore was that of Det. Sgt O’Hara, given in interview on 18 April 1997. He expressed his opinion that Dawn Reed was not a child abuser. The Team’s response was "So you are still struggling with that a bit?". This observation to the police officer (which might be thought a little patronising) is echoed in the Report (page 113), where the Team commented that "Joyce Eyeington was frank with us when she said that she struggled to believe the allegations". It appears that the Review Team were operating on certain assumptions, such that anyone who gave Christopher Lillie or Dawn Reed the benefit of the doubt must either be biased or "struggling" to overcome prejudice.

 

1306.        They went on to inform Sgt. O’Hara that Mr Lillie and Miss Reed had chosen to work together. This was incorrect as it happens, although another member of staff (Carol Welsh) was under the impression during her interview, in August 1996, that they had opted to stay together. The officer said this was "news to me". He then recalled how he had addressed the possibility of a sexual relationship between Mr Lillie and Miss Reed and concluded "I very much doubt it". This the Review Team also brushed aside with the banal words, "Well, they say opposites attract". Professor Barker simply dismissed the officer’s views on the footing that he was "operating on a basis of having a stereotype of what abusers of children were like, which Dawn Reed did not fit".

 

1307.        It began to emerge in the course of the trial that the Review Team had an ambivalent relationship with the police. They appeared to feel beholden to them for allowing them to see the video recorded interviews with the children (as the parents had requested). Some members of the Team appeared to think that there was an agreement or understanding with the police that, in return, they would not criticise social workers and/or police officers over the way the interviews were handled. Mr Wardell, on the other hand, did not believe this to be the case. Eventually, Professor Barker admitted, "My memory is that there probably was".

 

1308.        There is no doubt that the Team were reminded by the police in writing that there is a statutory scheme for dealing with police complaints and, accordingly, they formed the view that it was no part of their function to criticise police officers. I was also told by Mrs Saradjian that there was a letter from the police asking them, in effect, to "go easy" on Helen Foster when interviewing her. The letter was only produced late in the day (on 18 April) and I have set it out above together with Professor Barker’s reply (see paragraphs 1186-1187). Detective Inspector Findlay referred in interview to that letter, in which she had apparently been described as being "upset" by the inquiry. He said: "Did you get that letter about Helen Foster? …I really mean it. I want you to give very serious consideration to that; this enquiry had a terrible effect on her".

 

1309.        Mrs Saradjian said that they did not want to upset her further. Miss Foster was the officer who conducted or supervised the controversial interviews with Child 14. It was to her, therefore, that questions needed to be directed as to the serious issues raised by Holland J when the trial collapsed. Mrs Saradjian accepted that there were questions they would have liked to ask – but they chose not to. Again, very revealing. It begins to look as though they were indifferent to the answers – answers which Holland J had explained were so crucial. Indifference to the truth can, of course, in certain circumstances provide evidence of malice.

 

1310.        I strongly suspect that if it had not been for a passing reference to it in the Campbell Findlay interview the "go easy" letter from the police would never have seen the light of day (as it eventually did only on 18 April 2002).

 

1311.        So far as the suspicious gap in the tape recording of this interview is concerned, they accepted, without even questioning it, the explanation that Helen Foster had forgotten to ensure that the tape was switched on.

 

1312.        This is a very important aspect of the Report. The Team gave the world its assurance (which the readers had to take at face value) that the child’s evidence of rape was "powerful" and "persuasive" and, by strong implication, also consistent over three separate interviews. Even in 2002, Mr Wardell ventured to suggest in his evidence in chief that the videos were "of an exceptionally high standard". Yet the truth was that Professor Barker, at least, regarded them as "inconclusive". In certain respects, so too did Mrs Saradjian.

 

1313.        It is to be remembered how critical that last section of the third interview was for Mr Lillie. He had just been given bail on 22 October 1993 when, after the child had finally got round to accusing him of rape, he was immediately re-arrested and thereafter remained in custody for the next nine months. The accusation of rape was made in circumstances powerfully castigated by Professor Bruck (see paragraphs 416 and 782 above).

 

1314.        Yet none of this was questioned by the Review Team. The readers were not to know that they were "going easy" on Helen Foster. They were entitled to assume that the matters had been independently and carefully investigated and that Holland J’s concerns would have been thoroughly addressed. The Team felt qualified to ladle out praise to Helen Foster and other officers. It was thus vital for the public to know that they were not being even-handed. It was a one-way valve. They regarded themselves as disqualified from criticising and, what is more, had not asked questions that needed to be asked (and this as a matter of policy).

 

1315.        There is thus, to say the least, a hollow ring to the Team’s claim on page 24 of their Report that they had uncovered "as full a picture of the events under investigation as is humanly possible". It was ludicrous to make such a claim when they set out to empathise with witnesses and proceeded on the uncritical footing that they were being told the truth. Moira Luccock of the Independent Persons Scheme was asked about the inquiry process that she and her colleagues had been overseeing (and to which they gave a clean bill of health):

a.      "… But it is not like a situation in a courtroom where you are actually challenging. You are not challenging the person. You are actually accepting that they certainly believe what they are telling you, and you have no reason to doubt that as the investigator".

1316.        It is true that she said this specifically in the context of complainants rather than police officers, but it has not been suggested that the Team adopted a more testing process in some cases than others. Such an approach may be suitable for some forms of inquiry but its limitations are obvious. It is certainly not a legitimate way of determining issues of guilt or innocence of criminal offences such as rape or indecent assault with a view to publication. Yet the Team were not frank with their readers about the limitations of their inquiry. They tried to have it both ways by claiming publicly to have been "robust" and to have provided "as full a picture … as is humanly possible".

 

1317.        The members of the Review Team knew about the worrying break in the tape. They knew it was "unfortunate", and Mrs Saradjian accepted it looked "fishy". But none of this was mentioned. They shut their eyes to it and refrained from asking the questions that cried out to be asked. Readers would assume that the fulsome praise of the interviewers would have only been included in the Report after an exhaustive exploration of their methods. It turns out that this was simply not done. They had been reminded that it was not for them to investigate criticisms of the police. Yet the other side of the coin would surely be that they were equally disqualified from covering them with glory.

 

1318.        Mr Wardell was in difficulty over the gap in the tape. On the whole, he came across as a decent man trying to be as frank as he could. He seemed modest, level-headed and restrained in his account of the Review Team’s task. Weasel words did not come naturally to him, but even he succumbed on this occasion. I asked him on 22 February whether he was then saying only that he found Child 14’s second interview "powerful", or whether as the Report states he found all three "powerful". He replied:

a.      "If I had to distinguish… I would say that video 3 was less powerful, but not much so, only by degrees, purely because of the gap".

b.      That was the understatement of the year.

1319.        Moreover, the Team members were not just neutral or silent. They gave an assurance generally that there were no leading questions. On 8 February Professor Barker went so far as to concede that "… it was too strong a statement on reflection". He repeated that concession on 17 May. That is a classic example of Professor Barker’s trying to hedge his bets. He knows the assurance was untrue. Each of the four members of the Review Team had viewed the Child 14 video-taped interviews. Moreover, each Team member had seen Professor Barker’s note of the Child 10 interview in which he expressly refers to "leading" questions. Each of them therefore knew it to be untrue. It was obviously untrue, and the readers had no way of forming a contrary opinion.

 

1320.        In the light of these matters, I am afraid that I have been unable to come to any other conclusion than that the bland assurances given to the public about Child 14’s video evidence were not given in good faith. There is just too much brushed under the carpet for it to be explicable by carelessness or accident. The police were obviously anxious to keep Mr Lillie in custody. He was about to get bail, and the only way he could be re-arrested was if a solid new allegation came into their hands. An allegation of rape was obtained in the most oppressive circumstances, at the end of a third hour long interview, and only after the tape had been mysteriously switched off for 15 minutes. Armed with that, the police went straight off to re-arrest Mr Lillie and to deprive him of his liberty until he was acquitted the following July. Yet the Review Team deliberately refrained from exploring any of this with the police; instead they reassured the public that nothing was amiss. It was conceivable that the suspicious circumstances surrounding the events of 22 October 1993 could be explained quite innocently. But that had not happened by November 1998. The Council had a right to be told the truth and the Review Team misled them.

 

1321.        No account was taken, either, of the fact that Child 14 herself appeared on Panorama in 1997 on the same programme as Mrs Saradjian, and gave yet another version of what happened to her. This was not apparently thought in any way to undermine her reliability. Indeed, on 22 February Mr Wardell told me that it did not affect the Team:

a.      "We had to be careful it did not. It is a bit difficult when you have seen it happen, but we set it to one side".

b.      Earlier, he had said that they tried to behave as if the programme had not happened.

 

1322.        The other insurmountable hurdle for the Review Team is that part of the Report where they appear to claim corroboration for the allegations of a paedophile ring and involvement in pornography. They did not need to make such grave and disturbing allegations. The simple truth is that no evidence was found to corroborate them. Yet the Review Team wished to convey these horrible smears to the public as being justified by their three years of careful investigations. They grossly misrepresented the position in at least four respects. As I have already explained, the police were satisfied (1) that there were no concerns about the named young man with the camcorder, and (2) that there was nothing to put the older man of distinctive appearance, or (3) the man with a disability, or (4) the woman with red hair "in the frame" for child abuse. Unfortunately, the public were not to know this. They were given the impression at pages 217 and 269 of the Report that the police investigations had provided corroboration for what the children had said (or rather for what various adults had construed them as saying).

 

1323.        The Team witnesses tried swearing by the card. They suggested that what they meant was that the police had found that people existed physically corresponding to the descriptions given by the children or their parents. What obviously mattered, however, was not whether such persons existed but whether they had ever been present on occasions of child abuse. That was emphatically not corroborated. There was no point in mentioning them in the Report unless it was to suggest that there were grounds to link them with paedophilia. The explanation given, therefore, was feeble and disingenuous.

 

1324.        The argument was raised by the Review Team in closing that it was not only the Review Team who "considered" or "concluded" that other people were involved in abusing the children. They cite individuals who expressed "opinions" to their inquiry, but it is crucial to focus on the distinction between opinion, surmise or guess-work on the one hand and evidence on the other. Particular examples cited were Julie Kinghorn, Helen Foster, Vanessa Lyon and Dr San Lazaro. The Review Team can hold whatever opinions they wish, but they were being paid to look into the facts and present a measured appraisal of the evidence. It is that which they chose to misrepresent. The personal opinions of Vanessa Lyon and Dr San Lazaro are not evidence. They were lacking in balance and objectivity, but the Review Team as private individuals were entitled to agree with them. Yet the Report was supposed to be authoritative and what they were not entitled to do was to pretend that the police had found corroborative evidence. Neither Julie Kinghorn nor Helen Foster ever gave any support for that proposition.

 

1325.        The Review Team praised the police for their vigour and, in particular, they praised Mr Campbell Findlay. I have little doubt that, if he had dug up a shred of evidence to support the paedophile theory, he would have pursued it to a conclusion. Any police officer involved in the inquiry would be under a duty to protect local children from exploitation and abuse. Yet nothing was found to link any of the "suspects" to impropriety of any kind. What the Team did was dishonest. They told the public that these "vigorous" police officers had turned up (unspecified) evidence but that it was not strong enough to be used in court. In other words, these hardworking officers were subtly portrayed as having been let down once again by the inadequacies of the law of evidence. I will not permit that to be brushed over. It was a mischievous falsehood. It put not only the Claimants in danger but several other quite innocent people (against whom nothing has been turned up in the last nine years).

 

1326.        What is said on the Defendants’ behalf in their closing submissions is that "the paragraph could be better phrased to make it clear that it was the children’s evidence and not any other evidence". This is said to be clearly attributable to "loose thinking and/or wording and not evil intent". That was not how it was put by the Review Team in evidence. Professor Barker tried to shelter behind a proposition which could not be tested or refuted – namely, that Campbell Findlay had said something off the record (to the effect that they had found some corroboration). That was not true. The other two Defendants who had been present (Mrs Saradjian and Ms Jones) accepted that nothing had been said off the record to confirm the particular identifiable individual’s involvement in paedophilia.

 

1327.        One can also detect the same subtle techniques at work on page 100 of the Report in relation to Child 22 where the negative anal findings are converted into "no conclusive forensic evidence of penetrative trauma" (emphasis added). Again the false impression is given that there was some evidence.

 

1328.        I cannot see how these grave allegations can have been given currency and the apparent stamp of authority in the Report without the Review Team knowing exactly what they were doing. They each went through the Report line by line and approved it. They knew what the police had been saying about lack of corroboration, but despite this they allowed it to go forward as part of their conclusions that there were solid grounds to corroborate the Claimants as being part of a paedophile ring, together with some of those identifiable local residents, and as also being engaged in child pornography. This is deeply worrying.

 

1329.        This matter is closely linked with the passage at page 269 of the Report which refers to photographs taken from the flat where Mr Lillie had been living. Not only did Mr Lillie and Lorraine Kelly go into the witness box and explain about the photographs, but the Review Team were told years ago by the police that, after going through everything with a fine tooth comb, they had found nothing to support any suggestion of impropriety or pornography. Yet, for no reason whatsoever, the Review Team chose to announce to the public that Mr Lillie’s explanation for the photographs "was probably false". Since Detective Inspector Findlay had been painstakingly through them all, and they had not, it is difficult to see how they could say that in good faith. It was deliberately and gratuitously added.

1330.        Between pages 209 and 217 of the Report, various striking examples are given of child abuse and, in particular, of penetrative injuries. It is baldly stated that:

a.      "When investigations were carried out, in many of these cases physical [i.e. clinical] evidence was found that validated the children’s testimonies".

b.      What the reader is perhaps most likely to remember is the dreadful allegation that Child 4 had cutlery inserted into her vagina which caused bleeding. This striking example of cruelty (no longer pursued in these proceedings despite being "put" in cross-examination) can only have been included in the Report on the basis that the Review Team wished the readers to conclude that they had found it proved. The likelihood is that the reader will also assume that this grave allegation could not conceivably have been included in that section of the Report unless there was powerful evidence to corroborate it – including "physical evidence" of penetrative trauma. There was none.

1331.        They had not even discussed the matter with Dr San Lazaro in interview, despite the fact that the mother had waived confidentiality in respect of medical records. Professor Barker admitted that to him, as a layman, it had seemed unlikely that such an example of penetrative abuse would be consistent with no physical findings, but they all apparently so lacked curiosity about this serious example that they did not pursue it with a paediatrician. Again this betrays at the very least a determination not to pursue elementary lines of inquiry which could conceivably undermine their conclusions on these desperately grave allegations.

1332.        Moreover, no concern appears to have arisen over the mother’s developing and changing story. In 1997, on Panorama, the story had become embellished by the presence of Mr Lillie who was said to have been "laughing" while the cutlery was inserted. This detail was introduced at least four and half years after the event could possibly have happened. The mother then alleged that this outlandish piece of cruelty by Dawn Reed happened more than once. Yet none of this gave the Review Team pause for thought at all.

 

1333.        I have already referred at some length when considering the Review Team’s evidence (at paragraphs 1225-1230 above) to their failure to explore with staff members the children’s allegations that one or more of them had been present on visits to places outside the nursery when abuse is supposed to have taken place. This too was such an obvious line of inquiry to be pursued. I can only conclude once again that the Review Team did not want to know. Despite this, they represented to their readers that they had come to their devastating conclusions after a painstaking analysis of the evidence. Some of their readers clearly believed that. For example, Jennifer Bernard said that she had been so persuaded. She had already left the employ of Newcastle City Council by the time the Report came out and I have no idea how carefully she read it, but it did not take very long for others to see through it (e.g. Mr Dervin, Mr Cosgrove and Mr Marron).

 

1334.        From time to time, Mr Bishop tentatively sought support for his Review Team clients from the attendance of representatives from the Independent Persons Scheme. I am quite sure that those involved in that Scheme often do an excellent job in trying to ensure fairness in the kind of inquiries for which their services would normally be required. On the other hand, most of them would not have the relevant knowledge or expertise for determining "charges" against Mr Lillie and Miss Reed. As Moira Luccock pointed out on 1 March, the Shieldfield experience was unusual if not unique; that is to say, the attempt to carry out an investigation generally as well as dealing with individual complaints. They normally deal with "single complainants".

 

1335.        It is against that background that Moira Luccock’s views have to be assessed. Mr Bishop introduced the opinions she expressed at paragraphs 32 and 35 of her witness statement. She described the Review Team’s investigative process as "open, detailed, thorough and fair" and expressed the view that the Review Team’s conclusions were "based on a comprehensive analysis of the evidence collected". There was no "inherent bias against Lillie and Reed" and, moreover, they "came to their findings after the conclusion of a thorough investigation". (It is ironic, perhaps, that she should be making such a claim when she had already told me, shortly beforehand, that even before the Review Team began its task it had become "clear" that the Council was "dealing with a multiple abuse situation".)

 

1336.        I have no doubt at all that those are the honest beliefs of Moira Luccock and her colleagues. Yet I am bound to come to my own conclusion on these matters on what I have read and heard in this trial. My conclusion is quite the opposite. With the benefit of fuller investigation, it is apparent to me that Moira Luccock’s assessment is simply unsustainable.

 

1337.        I mentioned earlier that for a fact-finding tribunal it is especially helpful to focus on moments when a witness’s mask slips. During the course of the City Council’s evidence, other examples of Professor Barker’s true character came to light from contemporaneous documents. First, there was the incident involving Mr Hattam. He was a trade union representative whom various staff members wished to have accompany them when being interviewed by the Review Team. Various City Council witnesses recalled this controversy which had flared up in 1996. Professor Barker (perhaps with the assent of one or more of his colleagues) took objection to these witnesses being represented by the union official of their choice. The reason he gave over the telephone to Mr Warne on 24 July 1996 was that Mr Hattam was biased because he seemed to believe that Dawn Reed was innocent.

 

1338.        The relevant paragraphs from Mr Warne’s note should be set out in full:

a.      "[Professor Barker] believes there may well be a real problem here. He believes, on the basis of their interview with Kevin Hattam that he believes that Dawn Reed is innocent. In his interview, Kevin Hattam said that this was the strangest disciplinary case he had ever been involved in, because there was no evidence. He indicated that he was happy to defend Dawn Reed and commented that she was either innocent or a brilliant liar. He went on to indicate that he did not feel he could have represented her if he felt that she was guilty. As a result of these remarks, Dr Barker believes that Hattam still has a strong personal bias in this matter and is therefore unsuitable for representing members of staff.

b.      I pointed out that under the procedures staff can choose who they wish to represent them and I was uncertain as to what rights he had to refuse a particular representative. He pointed out that he could adjust the terms of reference and could create rules to deal with this situation".

1339.        It is not easy to understand such a mentality. Yet the episode sheds a flood of light on Professor Barker’s lack of objectivity and his willingness to use his position to bully.

 

1340.        Secondly, there was the unpleasant attitude displayed at around the same time to one of the City Council’s solicitors, Ms Barbara Milligan, who dared to question Professor Barker’s summons to attend upon the Review Team and be interviewed. She wondered exactly how she could help and what areas they wished to ask her about. She not unreasonably inquired by letter in April 1996. Professor Barker responded by telephone on 29 April (according to a contemporaneous note) that it should be enough that they had asked her to attend. He also said to her over the telephone, according to the City Council note I was shown, that the only other people who had declined this summons were Christopher Lillie and Dawn Reed. He asked if she really wanted to find herself in that company. Not surprisingly, she did not care for his tone. For sheer nastiness, it takes the biscuit.

 

1341.        After a three month gap, Professor Barker returned to the witness box on 17 May in order to deal with these apparently telling conversations. As to Miss Milligan, he said that he had not seen the note of 29 April 1996 until recently and he was somewhat shocked by it. Miss Milligan had obviously got it wrong. He remembered the conversation. Mr Wardell was in the room at the time and had complimented him on how polite he had been, especially in view of Miss Milligan’s "aggression".

 

1342.        He had to agree that Miss Milligan could only know that the only two people who had declined to meet the Review Team were Christopher Lillie and Dawn Reed if she had been told as much by him. He agreed that he also told her that, if she refused, her name would be put in a list at the back of the Report (the only other candidates at that stage, as it happens, being the two Claimants). Those admissions take Professor Barker right up to the wire – he draws back only from accepting that he issued a warning as recorded. I do not believe that Miss Milligan, a senior solicitor, would have recorded the "warning" in those terms if it had not happened. She could hardly mistake it; nor had she any reason to make it up.

 

1343.        Miss Page pointed out that a similar "warning" had been given to Joyce Eyeington. It is set out in her witness statement and was not challenged when she gave evidence. She too was told that it would look bad if she did not come and meet the Review Team. Her name would be included in the list.

 

1344.        Henry Warne had made another note. This was dated 19 April 1996 and concerned yet another potential solicitor witness, Mr Stefan Cross. Mr Warne recorded that Professor Barker was saying that he would write to Mr Cross with a "final warning" that he would be listed as one of the few people refusing to attend. He told him also that otherwise it was only Christopher Lillie and Dawn Reed who were refusing. According to Professor Barker, Mr Warne has also got it wrong. But I do not find it credible that both Mr Warne and Miss Milligan had got hold of the wrong end of the stick. The pattern is a consistent one. I think Miss Milligan’s record is likely to be accurate.

 

1345.        So far as Mr Hattam is concerned, Professor Barker rather surprisingly said that he personally did not have a problem about what Mr Hattam believed. His objections were rather based on the fact that some nursery workers and some social workers did not want to be represented by Mr Hattam because it was perceived (either by them or by parents) that he would have a conflict of interest. It is difficult to see what would be the nature of the conflict. Yet this seemed to be a new allegation. I had never heard of it before. There seemed to be no record of such concerns. Nor was Professor Barker able to identify any of the individuals who were supposed to be concerned. It did shortly afterwards emerge that there was at least one person who did not wish to be accompanied by Mr Hattam. Vanessa Lyon told me on 23 May that she had been vigorously cross-examined by Mr Hattam during the disciplinary proceedings and would rather have another trade union officer when she came to be interviewed. This was, however, a matter of personal distaste and nothing to do with any conflict of interest.

 

1346.        Vanessa Lyon’s evidence thus supports Professor Barker’s recollection up to a point. But yet again there were contemporaneous documents which appeared inconsistent with his claim to be neutral over Mr Hattam. He was shown a note of 23 July 1996 of a meeting between Ms Bernard, Mr Armstrong and Mr Warne in which it was recorded as being Dr Barker who was "unhappy" about Mr Hattam representing nursery staff. Once again Professor Barker deftly shifted his ground. He might have been "unhappy" after all – but only because of the perceptions of others (that Mr Hattam was in a position of conflict).

 

1347.        There was the other note of Mr Warne (quoted above) dated the next day. He recorded Professor Barker’s view (expressed on the telephone) that Mr Hattam had a "strong personal bias" which rendered him unsuitable to accompany staff when being interviewed. Once again Professor Barker claimed that Mr Warne had got it wrong. That one sentence alone was inaccurate. I am quite satisfied, however, that he was accurately recording Professor Barker’s stance which, at that time, was something of a bone of contention. The attitude of the union was, in effect, that it was none of Professor Barker’s business. Employees could be accompanied by a trade union official of their own choice.

 

1348.        As Miss Page pointed out, if the position truly was that some members of staff wanted him, and others (e.g. Vanessa Lyon) did not, that was easily accommodated. There was no problem. The only issue that gave rise to these discussions was the fact that Professor Barker was trying to interfere by precluding some witnesses from having the trade union official of choice.

 

1349.        This was a matter on which Moira Luccock of the Independent Persons Scheme also gave evidence. On 1 March she said she recalled the issue, at least in general terms. It seems to have been her recollection also that the matter was raised by Professor Barker rather than staff. What she said was this:

a.      "I certainly recall that it was an issue that Richard Barker felt should be aired … and there needed to be a resolution because members of staff were entitled to have a representative with them. So it needed to be resolved".

b.      She agreed that it accorded with her memory that Professor Barker was objecting "because Kevin Hattam had represented Dawn Reed in disciplinary proceedings".

1350.        The matter was finally resolved when Barbara Hann, the UNISON Branch Secretary, wrote to Jennifer Bernard on 30 July 1996, pointing out that her members at Shieldfield Nursery were extremely concerned, as they had great confidence in Kevin Hattam, and wished to be represented by him. She pointed out that it was illogical for them to be deprived of his services when he had acted for them in the Part 8 review. She added, "UNISON therefore feels it must insist that Kevin is permitted to represent the members". Professor Barker then gave way and informed Jennifer Bernard that, "having made their point", the Review Team would no longer object (see her memorandum to Mr Warne of 1 August 1996). Barbara Hann was in a position to stand up to Professor Barker. Others were not so fortunate.

 

1351.        What is revealing about these episodes is not so much that Professor Barker was becoming too big for his boots, but that he was plainly incapable of keeping an open mind or approaching the search for information dispassionately. In my judgment it is manifest from what he said to Ms Milligan that his claim in February 2002 to have retained an open mind about Dawn Reed until December 1997 was simply not truthful. Nor was the claim (at page 19 of the Report) to have guaranteed "natural justice for all those involved".

 

1352.        Another strange and revealing aspect of the Team’s approach to evidence relates to their own experts. They instructed entirely appropriate people to give them advice on some of the matters confronting them, namely Professors Ray Bull and Graham Davies. They are undoubtedly well known experts in the field of child sex abuse investigation.

 

1353.        Unfortunately, those experts were unable to review the video recorded interviews of the children. Nor did the team, even allowing for that important limitation, invite their comments on the quality of the children’s disclosures. It was regrettable that the Review Team did not even disclose their letters of instruction to Professor Bull until after the trial was over (on 31 May 2002). They did not disclose those to Professor Davies. What does emerge, however, is that Professor Bull was not supplied with any material about the video interviews or about the children’s statements or how they evolved.

 

1354.        Turning to what these experts had been able to provide, I find it curious that the Team seem to have ignored or put to one side the advice received. In particular, Professor Davies at paragraph 9 of his Report sets out the guidelines for good interviewing practice. When comparing his guidance, however, with what went on so far as the Shieldfield children are concerned, it soon becomes apparent that it was not consistent. Nor did they appear to take account of Professor Davies’ warning that, even after statements have been elicited through suggestive techniques (intentionally or otherwise), they can nonetheless give the appearance of being spontaneous.

 

1355.        They do, however, address (at pages 220-221 of the Report) Professor Davies’ warning against over-zealous questioning. They conclude that in the Shieldfield case the children’s evidence could not be explained by "… the implanting of false information, pressure from parents, and/or by over-zealous or suggestive questioning on the part of social workers and/or police". That conclusion is something Professor Bruck is unable to understand in the light of what they had seen. I too am unable to understand it in the case of persons of their experience, unless they were setting out to misrepresent the situation, safe in the knowledge that their readers would not have the primary evidence and, therefore, lacked the ability to form any opinion of their own. They had to take what the Review Team said on trust. It is, I am afraid, difficult to avoid the conclusion that this trust was abused.

 

1356.        Although the Report (pages 219-20) claims that the Team considered the children’s statements in the light of Professor Davies’ advice to scrutinise the history of the children’s statements, and whether the name of the accused was suggested to the child, there is no evidence that they in fact did so. Readers would, on the other hand, assume that they had done precisely that in arriving at their conclusions and giving their assurances (for example, as to the lack of parental pressure and of suggestive questioning).

 

1357.        Miss Page illustrated the significance of this in relation to the claim that the Team were "convinced of the spontaneity of disclosures particularly in relation to ….. the use of cameras, and syringes". They did not scrutinise the history of the children’s statements. This may be partly because it was contrary to their policy of not testing the parents’ evidence and partly because they did not take the trouble to do so. It is, however, quite wrong to give the impression that their conclusion was based on careful scrutiny. That is a false claim, just as the Team made false claims about the absence of leading questions, and the supposed corroboration for the paedophile ring and for the taking of pornographic pictures by a named individual with a camcorder. Miss Page invited me to trace through the allegation about syringes to show how "careful scrutiny" would have shown anything but spontaneity.

 

1358.        There are three children primarily relevant to "syringes", Child 4, Child 10 and Child 12. In relation to Child 4, the Team included (at pages 212-3) reference to a child describing injections in the arms, legs and bottoms [sic] that "make me go whoo", allied with the suggestions that "they hurt my fairy" but after injections "it did not hurt". This derives from Child 4’s mother’s interview with Mrs Saradjian on 8 November 1995. There is no earlier record of the child saying anything to this effect. Prior to publication of the Report, three years later, there was no "scrutiny" of the history of the child’s statements, careful or otherwise. The mother has said in these proceedings that the child made claims to that effect only in or later than July 1995. It is extraordinary that the Team showed no interest in establishing this at the time, while claiming to have followed Professor Davies’ advice "as far as it was possible to do so". The readers of the Report were surely entitled to know that the allegation first surfaced well over two years after the suspensions. They knew nothing as to the circumstances in which the child (as opposed to the mother) made these statements but yet claim to be "convinced" as to their spontaneity. What they did know was that Child 4 had over the intervening period been subject to a good deal of questioning and to a real risk of cross-contamination (see paras. 615-619 above).

 

1359.        The claim in the Report cannot be true either in relation to Child 12. The words they attributed to him (at pages 212-13) were "nice juice into bottom so it would not hurt". This wording derives from an interview by Ms Jones as late as 8 April 1997. Dr San Lazaro comes on the scene at this point, because she saw the boy on 11 November 1993 and introduced the notion of a syringe. She produced one for him, invited him to use it to transfer juice from one receptacle to another and allowed him to take it home and play with it. That is almost certainly where the notion of "juice" came from. The Review Team knew nothing of this because they had not heeded Professor Davies’ advice to scrutinise the history. Again, they could hardly be convinced of the child’s spontaneity.

 

1360.        It is right to say that the child is recorded by social workers on or about 9 November 1993 as having told his mother that he had been in bed with "Chris and Dawn" and they had "put a needle up his bottom" (no reference to "juice" or "not hurting"). It is necessary to see this in context. It was the same day that the mother rang for advice about a "wriggly bottom". The GP notes associated this with itching and referred the mother to Dr San Lazaro who saw him two days later. The wriggly bottom appears to have been associated with an anal discharge, and the streptococcal infection was diagnosed. None of this had anything to do with the Claimants. The child was clearly, however, focusing on anal discomfort. The reference to "a needle up his bottom" may have been a pure coincidence of timing but it seems unlikely. To what extent or how Mr Lillie and Miss Reed came into the conversation about the anal discharge or the "wriggly bottom" cannot now be determined. I am certainly not going to assume that their names were mentioned spontaneously and independently of the current discomfort.

 

1361.        The Review Team did also have a note from Kulvinder Chohan to the effect that the child had retracted the allegations on video.

 

1362.        As for Child 10, the relevant passage in the Report is "… another said needles in his bottom ‘make him dead’". The words come from the mother’s interviews with Mrs Saradjian on 8 and 17 November 1995. Miss Page takes the point that the Review Team altered the sense because what the mother is recorded as saying is "[Child 10] also talked about Dawn putting needles into his bottom that were supposed to make him dead". There is no other record of a similar allegation ever being made by Child 10. I am not convinced that the omission of the italicised words makes a significant difference. What is, however, clear is that Mrs Saradjian did not follow Professor Davies’ advice and explore the timing or background to the child’s statement. In the words of Ms Jones, "our job was not to cross-examine the parents".

 

1363.        It is thus important to note what has subsequently emerged. In particular, it is accepted in the mother’s witness statement that she led the child (understandably) as a result of having passed on to her the allegations apparently made by child 14 in October 1993 involving Child 10 in the context of needles. There is also a contemporaneous note of Helen Foster dated 23 October 1993, which was available to the Review Team and records the mother as having asked the boy if he had been hurt with a needle. He responded, according to this record, that he had not been hurt but it was "a nail with water in the plastic bit that was put on the cheek part" of his bottom. In the light of this background, it is obviously regrettable that the readers were not informed of the circumstances in which the child’s comment was elicited (since it could hardly be said to have been spontaneous) or the fact that the emotive words "make him dead" derive from the mother (not the child) two and a half years after the "Shieldfield scandal" had first blown up. Nothing was said by Child 10 in either video interview about needles despite (as Professor Barker expressly noted on viewing them) a number of "leading questions, very focused on getting answers".

 

1364.        Readers of the Report, in the light of such information, might well want to know how it was that the Review Team could have become "convinced of the spontaneity" of the child’s alleged disclosure that "needles in his bottom ‘make him dead’". Once again it is difficult to see how they could make such a claim. I do not see how this can be categorised as a "regrettable error" or as something which was just "badly expressed". The Review Team gave a positive assurance which cannot have been true.

 

1365.        Mr Bishop argued, generally, that even if the false statements in the Report are not to be categorised as unfortunate slips it would not defeat qualified privilege since they honestly believed that the Claimants used syringes or needles to drug the children. That would be a complete answer to the plea of malice even if this belief were arrived at by a process of reasoning which contained a few unfortunate blips. Lord Diplock himself, of course, makes it quite clear that an honestly expressed belief may be protected notwithstanding its derivation from faulty reasoning. Here, however, I do not accept that the proposition is sufficient to dispose of the Claimants’ case.

 

1366.        Many people in Newcastle believed prior to the Review Team’s appointment that the Claimants were large scale child abusers. There would be no surprises if the Review Team merely joined the crowd. What mattered about the Review Team, on the other hand, was not their personal beliefs but rather the assurances they were giving to the public about the strength of the evidence in support of the widely held beliefs, following three years of supposedly rigorous and impartial analysis. That is what they were paid for (I was told they received £364,810.61). It was this supposedly detailed consideration of the evidence which distinguished them from the general public and underlay their claim to be able to accuse the Claimants under cover of privilege.

 

1367.        What was so damning in their Report is not that Ms Jones or Professor Barker as individuals assumed, for example, that the disciplinary findings of 1994 were justified but that they and their colleagues were vouching for the evidence. If they misrepresented the state of the evidence, that is very serious indeed. It would suggest that the protection offered by the law was being abused.

 

1368.        I have already mentioned the further warning notes sounded by Helen Foster about parental pressures in her interview with Mrs Saradjian (see paragraphs 1278 above). To pretend that contamination or pressure "could" have no bearing on the case without even addressing her concerns was a gross misrepresentation.

 

1369.        The Defendants submit that "the probability of a team of professionals conspiring … to produce a deliberately misleading document is remote indeed".

 

1370.        At the beginning of the trial I was sceptical about the allegations of malice against the Review Team. I was conscious of the need to prove bad faith in relation to each of its four members and that findings of malice are, accordingly, very rare. I said as much in my ruling of 7 February when I permitted the plea to go forward beyond the close of the Claimants’ case. Yet, having thought about the issue constantly over the many weeks of this trial, I am in the end left in no doubt that the qualified privilege to which the Team would otherwise be entitled is vitiated by express malice. They abused the occasion for which they had striven so hard to ensure that blanket protection. Its four members consciously, after a detailed consideration of the material assembled before them, set out to misrepresent the state of the evidence available to support their joint belief that Mr Lillie and Miss Reed and other local residents were child abusers (and indeed abusers on a massive scale) and to give readers the impression that statements by parents and/or children had been corroborated by police inquiries.

 

1371.        Moreover, so far as the accounts of these very young children were concerned, the assurance was given quite deliberately that (leaving aside altogether contradictions and inconsistencies) what they were saying was untainted by suggestions, leading questions or cross-contamination. They knew the contrary to be the case. Yet they even went so far as to assert (on page 102) that interviewers at the time "went to great lengths to the [sic] follow the Memorandum of Guidance literally, to almost have to treat children as though they were adult witnesses" because they were afraid of being accused of "leading" a child. (It is clear that the Review Team actually thought that even more leading questions should have been asked.)

 

1372.        Professor Barker clearly recognises this problem. He admitted in February that the passage (at pages 220-221) was overstated but, significantly, when he returned to the witness box in May, he chose to raise the topic again even though he was not asked about it. He said the claim was rather "strong". Whether he raised it because of a guilty conscience, or just because he recognises the weakness of their position, I know not. Even by that time, Professor Barker had not disclosed his rather scanty notes of the video interviews, but he did so on 31 May. It then emerged that he himself had noted "some leading questions, very focused on getting answers" in relation to Child 10’s second interview. This was shared with his three colleagues but not, of course, with the readers of the Report. Mrs Saradjian stated her position on 20 February. She actually wrote the passage on page 221 (to the effect that the questions were not in any way leading). She now says, however, that the claims might have been "slightly strong" but "there were not overwhelmingly leading questions throughout the videos". That is double-speak. Mr Wardell accepted that it would be "the easiest thing in the world to take the videos and find 25 examples of a leading question". Also, as I have already recorded, Ms Jones in the witness box recognised the leading nature of the interview questioning. What is clear is that they all chose to make a blatantly false claim which is quite indefensible. Yet the assurance is given on page 23 of the Report that its contents had been checked for accuracy and consistency.

 

1373.        More generally, the Review Team were full of praise for the interviewing techniques (page iv):

a.      "The video interviewing of children by social workers and police was done in a professional and sensitive manner. In particular, we were struck by the quality of the work of Vanessa Lyon, Marion Harris, Helen Foster and Julie Kinghorn".

1374.        This is difficult to understand in the light of the actual content of the interviews themselves. Helen Foster herself accepts that things would be done differently today. She was inexperienced at the time because the memorandum of good practice was only just beginning to be implemented. Moreover, she herself was fresh from instruction on the subject and was, at the time, only in her mid-twenties. Indeed in another part of the Report, the Review Team comment in relation to Helen Foster’s interview of Child 22 as follows (p.100):

a.      "The police officer had only undertaken the specialised training 6 weeks before, and had never actually interviewed a young child for evidential purposes; the social worker [Andrew Waterworth] had little experience in child sexual abuse and no experience in interviewing young children. Although it is not the individual workers’ faults, it is unfortunate that they did not have more expertise in working with children of this age".

1375.        It is hard to reconcile the lavish praise for Helen Foster (at page iv) with this observation. Two factors come into play, however, which may help to explain the apparent inconsistency. First, it seems that Professor Barker (and, through his cursory notes, possibly the other members of the Review Team) was labouring under the mis-apprehension that it was D.C. Peter Smith who had interviewed Child 22. In any event, neither he nor Helen Foster was mentioned by name on page 100. Therefore the readers would not be aware of the inconsistency. The Review Team’s adverse comment here seems to derive from the fact that the interview yielded "little of evidential value" (p.101). In other words, they are prepared to praise an officer if her interview yields allegations which can be construed as adverse to Mr Lillie but to criticise the same officer if the child appears to exculpate him. It can hardly be said that an interview is of little evidential value if the child expressly states (as Child 22 did) that he liked Christopher Lillie changing his nappy and, what is more, that nobody had hurt him at the Nursery.

 

1376.        In any event, why Marion Harris was mentioned in this context is incomprehensible, since she carried out none of the relevant interviews. Mr Bishop says the wording was just badly expressed and they were intending to praise Marion Harris for her work generally, but that is not what they said.

 

1377.        At page 102 of the Report the Review Team assert of Child 22, "Here was a child who would later allege that he had been taken to houses which he did not know, to be hurt by someone who had told him that his mother approved and knew". This allegation cannot be tracked down to any statement by the child or even by his mother. Mr Bishop took the point, when Miss Page sought to rely on this, that the allegation had never been put to any Review Team member. I am not sure this is a valid criticism, since if his clients wished to source the allegation the information could easily have been placed before the court. Neither side has felt at all inhibited about sending me additional material since the case concluded. I made it clear that I welcomed anything they wished to present.

 

1378.        I also find it odd that two members of the Review Team (Ms Jones and Mrs Saradjian) left the viewing to Professor Barker and Mr Wardell, save in respect of Child 22 and Child 14, and yet were quite prepared to join in the general hymn of praise. One is left with the firm impression that they were going through the motions. How can they possibly be "struck by the quality of the work" in video interviewing if they have not seen it? It is merely formulaic. They were supplied with no more than eight pages of cursory notes by professor Barker covering 18 videos – not disclosed until 31 May 2002 (three days after the evidence concluded and three months after their cross-examination) – one of which expressly refers to "leading questions" directed at Child 10.

 

1379.        Miss Page at the beginning and the end of the trial explained why, in her submissions, the Review Team were making so many misrepresentations, all consistently in one direction. It could not be a series of haphazard errors, she argued. It is on the balance of probabilities only explicable as a "stitch up".

 

1380.        I do not need to adopt her phraseology, but to anyone who has read the Report, and considered the many pages of evidence from the Review Team, the facts speak for themselves. The Team made a number of claims in the Report which they must have known to be false. I should now attempt to gather together and summarise the most striking examples:

a.      They suggested that there was evidence discovered by the police to confirm the involvement of the Claimants with other identifiable people in a paedophile ring, although it "was not strong enough to be used in court". The police had told them they had found no evidence to support this theory and that, had they done so, they would do something about it. This was a misrepresentation of the facts they were given (and they had not found any corroborative evidence themselves).

b.       They intended the world to accept that there were good grounds to believe that Christopher Lillie and Dawn Reed were involved in pornographic filming of small children in their care and, in particular, with a named young man who was using a camcorder. The police had decided in 1993 that there were no concerns about him. The Review Team were told about this and had no reason to believe that anything had changed. It seems clear that Professor Barker’s "professional judgment" that Dawn Reed was motivated by financial gain (see paragraphs 1143-1144 above) is no more than a fanciful attempt to justify that unsustainable conclusion.

 

c.       It was asserted that Child 14 had over three hour long video interviews detailed abuse of herself and others by Christopher Lillie and Dawn Reed (including the rape of herself by Christopher Lillie of which he had been acquitted in 1994) "and she also mentioned other nursery staff’s names". Her testimony was described as "extremely powerful and provided persuasive evidence of her abuse in the nursery and elsewhere". In fact, at least two of the Review Team (Professor Barker and Mrs Saradjian) considered the interviews "inconclusive" (no doubt partly because of the inconsistencies and contradictions which Holland J highlighted in his ruling of July 1994, and which the Review Team chose to omit). When they asked the police to view the interviews they expressly said that the reason they wished to do so was so that they could say in their Report that "this had a profound effect on us". This was at a time when they knew exactly what concerns had been spelt out by Sir Christopher Holland. Moreover, their objective was not in any way modified by seeing the tapes with all their blemishes or indeed their own conclusions that they were inconclusive.

 

d.       They gave an assurance in the Report that the "evidential videos made by the children … would not support the view that the questions were in any way leading". They each knew that they were full of leading questions, but the readers of the Report had no way of knowing. They now admit their assurance was a bit "strong". That is obviously an inadequate response. It was demonstrably false. They must have assumed that the police would never release them to anyone else and that their assurances would never be exposed.

 

e.       They drew attention to the fact that one of their own experts had warned them that young children could be "influenced by over-zealous questioning". They then claimed to have examined the information available "to consider whether there was any evidence" to support the explanation that any of the Shieldfield disclosures were made as a result of "over-zealous or suggestive questioning". They purported to conclude that "this could not be a viable explanation of the children’s evidence". They knew quite well that there were masses of "suggestive questions" and, what is more, they had been warned by the police officer in interview on 19 February 1997 that there was a risk of cross-contamination from parents discussing matters amongst themselves. She also reminded them that it was obvious from the videos themselves that in some cases the children had been promised "presents" or other rewards if they came up with allegations of abuse. It might theoretically be possible to go through the evidence in detail and satisfy oneself overall that (for example, because of independent corroboration) the evidence was nevertheless reliable. There is no evidence that the Review Team did this but, in any event, what they could not claim with any degree of honesty was that "this could not be a viable explanation". This they knew to be false.

 

f.        They told their readers that they had been "robust" and that they had followed the recommendation of Sir Louis Blom-Cooper (The Guardian, 24 February 1997) to "exhibit self-confidence" that they had "uncovered as full a picture of the events under investigation as is humanly possible". What they did not, however, reveal is that they had reached a quid pro quo with the police that in exchange for being allowed to see the children’s video tapes they would not criticise the police or social workers in respect of their interviews. In accordance with a written request from Detective Chief Inspector Machell (only disclosed two months after the Review Team were cross-examined), Mrs Saradjian was unchallenging in her interview of Detective Constable Foster because she did not want to "upset" her. There were questions that she knew needed to be asked but she refrained from doing so. They knew that they had not uncovered a full picture at all, because they chose not to do so.

 

g.       Not only did they prevent their readers from knowing of the inconsistencies, leading questions or other tainting influences, but they chose to praise the interviewers for their professionalism and to say that they were "struck by the quality of the work". This despite the fact that the viewing of most of the video tapes was left to Mr Wardell and Professor Barker in August 1996. There was thus no way in which Ms Jones or Mrs Saradjian could have been "struck" by the quality of the interviewing. I am also satisfied that Mr Wardell and Professor Barker could not honestly have been struck by the quality of the interviewing (which even their own expert was not prepared to defend and which Professor Bruck thought among the worst she had ever seen).

 

h.       The team were told by a senior police officer that he had been through all the photographs and videos found at the flat Mr Lillie shared with his girlfriend and found nothing to suggest involvement in anything improper (i.e. pornography or paedophilia): "I did not find anything in those photographs that made me think he was a pervert and we spent hours going through them". The slant the Review Team put on this was that the hundreds of photographs were not evidence of any "crime", but that Mr Lillie’s explanation for them (which happened to correspond with that of his girlfriend, who has never been accused of anything) was "probably false". There was no evidence for this. It was not simply that they were disagreeing with the police. They had not seen the photographs themselves and were not in a position to form a view of their own. They also attribute to the officer (Mr Findlay) the statement that he "had concerns". That was false. He expressed no "concerns". He said that they were "not in any way, shape or form … indecent or suggestive" and the videos were "totally innocent". He also vouchsafed to them that police surveillance of Mr Lillie had revealed nothing suspicious – only that he was "a boring fart" who went to McDonald’s and read photographic magazines. The police had checked out the magazines and found them to be genuine and innocent. The Team now accept that this passage in the Report was inaccurate but Mr Bishop suggests that it reflects their "impression". What that submission is based on I do not know. But I do not find it credible.

 

1381.        No doubt it could be argued that these false claims made in the Report betoken a cavalier approach to the evidence from which it would be fair only to infer recklessness (i.e. indifference to portraying an accurate picture of the evidence). In view of what they knew, however, and the consistent pattern of their false claims, I can only infer that they were aware that these specific claims were untrue.

 

1382.        Indeed, the Defendants’ submission through Mr Bishop is that it is inherently probable that a Report of over 300 pages will contain a considerable number of errors. I do not accept that this is necessarily the case, especially where it is claimed by the Review Team themselves that they checked it line by line. I am certainly not prepared to explain these falsehoods on that basis because, as I have said, they point consistently in one direction and go to fundamental conclusions in the Report.

 

1383.        One can test it this way. Suppose a reader were to subtract two of the false statements from the Report, by way of example, and to substitute the truth; the overall impact of the Report would be significantly altered. I will take first the assurance that there were no leading questions in the video interviews. The truth is quite the opposite. The Review Team now accept that the sentence should have been "phrased differently". For convenience, I will phrase it differently using the words of the Defendants’ own expert Dr Friedrich from his supplementary report:

a.      "The actual interview process as well as the verbal output from the interviews of the Shieldfield children can be criticised for many reasons. For example, parents were present during interviews, leading questions were common, and the rooms were filled with distracting toys. In addition, the children that were interviewed were typically 2-3 years old. Not only are children of this age more likely to comply with suggestions/leading questions by adults, their expressive language was extremely immature …." (emphasis added).

1384.        The second false statement I will use is that from page 269 of the Report that "the evidence was not strong enough to be used in court". Suppose one substitutes the truth:

a.      "The senior and experienced detective in charge of the inquiry vigorously followed up every lead they were given by parents and social workers and found nothing to corroborate the involvement of the Claimants or any of the other identifiable individuals in a paedophile ring or in pornographic photography" (emphasis added).

1385.        I do not believe it could seriously be suggested that, if the Report had contained these true statements instead of the false ones, its overall message and impact would have been no different.

 

1386.        Take away from the Report the paedophile ring. Take away pornographic filming. Take away "powerful" and reliable disclosures made by the children in police interviews. It would be a quite different report. These fundamental untruths cannot be put down as "accidental errors"; nor yet to the proposition that "drafting is itself a particular legal skill" (as it was put in closing). Mr Bishop emphasised that it is not necessarily malicious to mis-state a fact. He said (again quite correctly) that it may be possible to account for such mistakes because of mis-remembering what one has been told or mis-reading a document. The pattern here, however, is so consistent, and on such fundamental findings, that it would take convincing explanations by the Defendants as to how such mistakes had occurred. None were forthcoming. Professor Barker, for example, did not say that he had made a mistake and mis-remembered what he had been told by Campbell Findlay. He tried to pretend that Campbell Findlay had said something when the tape was switched off. It is, of course, for the Claimants to prove that the members of the Review Team knew that what they wrote was false when they wrote it, approved it or promulgated it. I accept that. The burden has been discharged, since I do not believe that all the mis-statements of essential facts could possibly have survived the detailed checking and discussions that went into the formulation of this Report. After all, it is not the Defendants’ own case that they did not bother to check any of the relevant material before they wrote these misrepresentations. That would, of course, be strong evidence of indifference to truth. What they claim is that the Report was drafted over months and carefully checked by each of them.

 

1387.        There are certainly other flaws in the Report such as, for example, that they were significantly influenced in arriving at their conclusions by the outcome of the disciplinary proceedings, by the Claimants’ silence (on legal advice) at the time of the disciplinary proceedings and during their own review, and by the findings of Dr San Lazaro which are in so many ways now open to question. Those flaws, however, do not demonstrate malice in themselves since they could be explicable by either defective reasoning or misfortune. But one is left with an irreducible minimum of knowingly false claims which cannot be explained on such a charitable basis.

 

1388.        Some of the statements made about the Claimants and about the evidence available to the Team were cavalier, in the sense that they disclose a perfunctory level of consideration when viewed "against the substance, gravity and width of the publication" (see the above citation from Lange v. Atkinson), so as to be consistent with a finding of indifference to truth. To take but one example, they claimed on page 41 of the Report that Child 14 alleged rape in her first video interview when she did nothing of the kind. This is surely not one of those cases where it could possibly be claimed that "a genuine belief in truth after relatively hasty and incomplete consideration may be sufficient to satisfy the dictates of the occasion" (see Lange at paragraph 48). By whatever standard, it seems to me that this statement was made recklessly. Yet, in the end, the case on malice succeeds because the Claimants have demonstrated, in the respects I have identified, knowledge on the part of each relevant Defendant that the material they were putting forward to support their conclusions was being misrepresented to their readers. Even if, therefore, Mr Bishop is correct (as I am assuming) in saying that I should not take the New Zealand decision into account at all when considering the notion of recklessness, as a matter of English law, it would make no difference to the outcome.

 

1389.        Mr Bishop emphasised that, when shorn of the accumulated learning on the subject, the issue of malice is in essence about motive. He asked me to focus on what possible motive the Review Team could have for wishing to damage the Claimants. The answer is, I believe, intimately connected to the history of their inquiry and the muddle over the terms of reference.

 

1390.        As Mr Wardell put it they had, when they began their task, two names on "a piece of paper". That is to say, they had Christopher Lillie and Dawn Reed as the likely perpetrators of multiple abuse. He went on to say that they might have added other names in due course, if evidence had emerged; alternatively, they might have removed one or both of the primary candidates. There is, however, no evidence to suggest that it ever entered their heads to remove either of these names. They were working throughout on the basis that there had been multiple abuse and that all the "evidence" pointed to those two people.

 

1391.        As Moira Luccock made clear, everyone at the City Council had decided that they were dealing with a multiple abuse situation. What is more, the Claimants had been suspended and dismissed on exactly that basis. As Professor Barker made clear, those findings constituted "one of the main influences" upon the Team’s conclusions. That was obviously not something that emerged. They knew about it before they even started.

 

1392.        Their inquiry was directed originally, and primarily, to making recommendations for the future and dealing with parental complaints. It only became apparent later, and apparently incidentally, that they could only expect to perform those tasks if they also made findings as to what had happened and who was responsible. It seems that their main concern with the Claimants was not to investigate with an open mind, or to appraise the quality of the evidence against them, but rather to offer thoughts on what had motivated them and how to avoid the appointment of paedophiles in the future. In so far as it became part of their task to pronounce upon their guilt of multiple criminal offences, their procedures were quite unsuited to performing it with any semblance of fairness or natural justice. What they did was to assemble arguments, theories and selective bits of evidence and use them to justify the assumptions they had made from the outset.

 

1393.        They claim now to have had open minds throughout a large part of their inquiry process. For reasons I have set out I do not believe that, but it would simply not have been in any way compatible with their methodology. They deliberately chose to proceed on the footing that complainants believed what they were saying and that they were not to be challenged or tested. The findings against the Claimants were made almost as a matter of formality. They were just seen as two "perpetrators" or "abusers" who were to be tidied away to make room for the Team to get on with their recommendations and pronouncements. That is why in my judgment they treated them as they did and how they came to distort and misrepresent the evidence against them.

 

1394.        The Review Team chose to promulgate to the Council and to the wider public what was recognised within days (by Mr Cosgrove and Mr Marron, in particular) to be a specious and disreputable document. They must have appreciated the harm they would do to the Claimants and indeed the physical risks to which they were choosing to subject them. But they were left to learn about these horrendous allegations for the first time through saturation media coverage. That lacked not only fairness but also humanity. Yet the Team even made the false claim that they had been given advance warning of the allegations and findings and a chance to respond.

 

1395.        I find my conclusion depressing and I am sorry that I have had to draw it. But it is unavoidable.

 

1396.        I have little doubt that the Review Team thought they could publish more or less whatever they wanted about Christopher Lillie and Dawn Reed with no consequences adverse to themselves. (Nor do I doubt that Mr Flynn thought the same when he made his arrogant claim that they were guilty immediately after they had been acquitted. I expect Dr San Lazaro took the same approach when she made her "overstated and exaggerated" assertions to the Criminal Injuries Compensation Board.) Not only did the Team have advice about qualified privilege, but they almost certainly assumed (as would the Council members and officers) that this beleaguered pair would not have the resources to claim legal redress. They were undoubtedly right about that. Had it not been for the introduction of the contingency fee arrangements a few years ago, and the courage and dogged determination of their various legal advisers, the Review Team’s methods would not have been uncovered. They and the Council would simply have ignored Mr Cosgrove and Mr Marron. A significant injustice would thus have gone unnoticed.

 

1397.        Yet by the end of the case it seems that the Review Team were even directing their sights on Mr Marron. It will be recalled that he was the Queen’s Counsel who led for the prosecution against Mr Lillie and Miss Reed in 1994. He was one of the first (along with Mr Cosgrove) to blow the whistle on the Review Team’s methods (see section 3 above). He had nothing to gain and was clearly acting simply out of a regard for fairness and decency. The Review Team, however, submit:

a.      "The position of Mr Marron Q.C. in this respect is curious. Although he associated himself with Mr Cosgrove’s observations, as prosecuting counsel he must have agreed with the CPS assessment that the chances of securing convictions against both Mr Lillie and Ms Reed were more than 50% and that a prosecution was in the public interest. If he thought the evidence in the case was more probative of Ms Reed’s innocence than her guilt then it is difficult to see why Mr Marron’s conduct is not also open to serious criticism".

1398.        This contention contains a misrepresentation and a misunderstanding. The misrepresentation is as to what Holland J had said about what was probative of Miss Reed’s innocence. He did not say that "the evidence in the case" was more probative of Miss Reed’s innocence than guilt. What he said was confined to the interviews of Child 14 (i.e. the Crown’s strongest case). What his Lordship said was that there was no basis upon which a jury could be sure and satisfied, on the evidence of Child 14, that Miss Reed was guilty of Count 3. He added that there was "a rather better basis for being sure and satisfied that she is innocent of that particular charge".

 

1399.        The misunderstanding is as to the role of a conscientious prosecutor. What Mr Marron did, as I have already explained, was to seek a ruling from the trial Judge under s.32A of the Criminal Justice Act 1988 in respect of the confusing and contradictory evidence of a four year old child about events alleged to have taken place when she was either two or three years old. Mr Marron had a sensitive and difficult task. What he did was entirely proper and it is unfortunate that the Review Team should take the opportunity in these proceedings to suggest that his conduct was "open to serious criticism". It was quite inappropriate. However much the Review Team may resent them, the comments of Mr Cosgrove (adopted by Mr Marron) were fully justified. 
 

 

 

 

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© Richard Webster, 2002

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